Australia’s legal heritageAdversarial & Inquisitorial system

Adversarial System of trial The way in which court cases are conducted Used for both Criminal and Civil proceedings Adversary means…. How might this relate to court proceedings?

In a trial the two sides of the case try to prove their version of the facts and disprove the version of the other side.

The defendant in a criminal trial does not have to prove anything, as they are assumed to be innocent until proven guilty (however, most accused will retain services of a legal team).

Inquisitorial system The court is involved in determining the way in

which the competing claims are presented. Different from Adversarial where the court acts as

an impartial referee. This ‘civil’ system involves a judges (or group),

who investigate the case before. Indonesia uses this system for criminal trials!

Evidence can be admitted before the case Witnesses are pre-approved Can call for outside testimony that has not been

requested by either side

Common LawDevelopment of common law, Development of equity & Precedent

Definitions Court-made law (as opposed to laws

made by parliament) Law developed by the courts as

common law, as distinct from the courts of equity

The system of court-based law used in the UK and many of its former colonies (incl. Australia, New Zealand, Canada and USA)

Development of Common Law The British legal system itself was

developed from a number of sources. Anglo-saxons – Based on local custom Norman – Travelling Judges who applied

common laws all over England. Petitions were received from people who felt the laws were unjust. Judges provided precedents for later cases. This system was the one brought over

Australia with the first fleet.

Development of Equity Anglo-saxon times – if a party failed to follow the prescribed

steps, he could lose the case Later, common law would hold that a person was bound by

contract, even if he was tricked into signing it. 15th Century, petitions to the King were brought forward,

saying that common law courts made unjust decisions. Chancellors were priests as well as judges, so didn’t base

decisions on precedents, instead based on Christian principals.

The body of law that developed to deal with injustices, became known as Equity.

The moral principals on which equitable decisions were based were called the rules (or maxims) of equity, still used today.

Precedent Common law, or case law, is the law

developed by judges when deciding cases. Read page 21,22

Make notes on: Making and following precedent Rules of precedent

Binding precedent Persuasive precedent

Complete “The origins of common law” & “Procedures for Precedent” worksheets (wiki)

Statute LawThe role and structure of parliament, the legislative process - passing legislation & delegated legislation

Definitions Statute law is the law mad by

parliament Also known as ‘legislation’ or ‘acts of

parliament’ In Australia, any parliament has the

power to make statute law: State Territory Federal

The role and structure of parliament Elected representatives Debate proposed legislation – passes or rejects and amends

legislation Bicameral – All state (except Queensland) and Federal Parliament

are separated into two houses( chambers): Lower – House of Representatives

The political party(ies) that has the majority of seats (the government) and the remaining seats are the opposition

Upper – Senate Senators are popularly elected under a system of proportional

representation (12 from each state, 2 from territories) and have power to block legislation from the house of representatives

Assent - The Bill passed by the Upper House to the Governor General or Governor for approval. If the Assent has been given, the Bill will become law.

The legislative process – passing legislation Most important function of parliament Time consuming and difficult Most laws are ‘introduced’ by the government A proposed new law is known as a bill. Anyone can introduce a bill If introduced by a member that is not a minister

(backbencher) – private members bill Open to public scrutiny – well organised pressure

groups and members of electorates that influence parliamentarians’ options

The legislative process – passing legislation Before a bill passes and becomes

federal law, it requires approval from both houses and the Governor-General

It then becomes an Act of Parliament NSW and other states with bicameral

parliaments is generally the same for passing laws

Questions for your notes Define the term 'statute law‘ What is the bill? Describe the purpose of the first reading of the bill What is Assent? Describe the role of parliament What is a 'bicameral parliament'? Outline the role of the House of Representatives Describe the function of the Senate Explain the role played by the Governor-General Explain the role of the courts in interpreting statute law

Explain the role of the courts in interpreting statute law The bill is regularly discussed between readings. The Bill is later on repeated to the upper house of parliament which then is voted on and returned to the lower house for amendment. If passed the Bill is sent to the governor general for assent. Then it becomes a law.

The legislative process – delegated legislation Delegated legislation is made by non-parliamentary bodies. ‘Less important laws’ that parliament doesn’t have time to

draft, consider and pass. These are subordinate bodies, such as government

departments or local councils These groups are able to perform this law-making process

through the Enabling Act Types of legislation involved

Regulations – G-G, state governors, executive council Ordinances – For Australian territories (Norfolk Is. & Antarctica) Rules – For government departments By-laws – By local councils, restricted to that area

Tasks Construct and A3 poster of “the passage

of a bill through parliament diagram” (page 30)

List the advantages and disadvantages of delegated legislation

The ConstitutionDivision of Powers, Separation of Powers, Role of the High Court

The Constitution 1st January 1901 Australia gained a

Commonwealth Constitution Framework and rules that apply to the

governance of Australia Previously six independent colonies,

governing within their own boarders, answerable only to Britain

Federation – The process of uniting several states to form a single national government

The Constitution Constitution document was formed through a

series of referendums Referendums – the referral of a particular issue

to the electorate for a vote 1898, 1899, 1900 referendums comprised the

proposed constitution Approval of the British parliament

Commonwealth of Australia Constitution Act 1900 (UK)

State the key features of the British Act (p32)

Division of power What powers would the state have? What powers would the federal government have? Chapter 1, Part v, s 51 to 60 - The constitution dived

up the powers between federal and the states. Legislative Powers: division of powers.docx

Section 51: Concurrent Powers & Residual Powers NSW v. Commonwealth [2006] (P50, Pearsons)

Section 52: Exclusive Powers – Commonwealth v Tasmania [1983] (P35, Cambridge)

Constitutional interpretation is the role of the High Court constitution.docx – Complete for Homework

Amending the Australian Constitution

• Statutes & Common law can be changed ‘easily’

• Constitution (technically a statute) has a unique process

• ‘Alterations of the Constitution’ – Chapter VII, s 128

• 44 proposed amendments, 8 successful (in bold or deleted parts ruled through)

• List the specifics in s 128(p36)• Provide TWO examples of

successful and ONE example of failed referendums

Separation of Powers (doctrine) Three arms of government:

1. The legislature – the law makers (House of representatives & the senate)2. The executive – the ministers of government departments who administer the

laws made by parliament (GG, PM, Cabinet)3. The judiciary – The courts who interpret and apply law

Each ‘arm’ check each other ensuring civil liberties are protected “basic individual rights, such as freedom of speech and religion, which are

protected by law” First three chapters of the constitution:

I. The Paliament (s 1 to 60)II. The Executive (s 61 to 70)III. The Judicature (s 71 to 80)

Not a ‘true’ doctorine as ministers and PM are members of executive and legislature. The key feature is distinguishing between judiciary and other arms.

Protecting the judiciary is a corner-stone of democracy. Evident when court make decisions not in accordance with government policy.

Australian Communist Party v. Commonwealth of Australia [1951]

High Court JurisdictionInterpretation of the constitution

Role of the High Court in interpreting the Constitution Section 71 – Creates the High Court of

Australia; allows Commonwealth Parliament to create other courts (i.e. Family Court, Federal Court & Federal Magistrates Court)

Section 72 – How High Court judges are appointed (1977, referendum retiring at age of 70)

Role of the High Court in interpreting the Constitution The High Court has both original and

appellate jurisdiction. Original Jurisdiction:

Summarise Section 75 & 76 (page 39) S 76(i) – Matters relating to the

interpretation of the Constitution; enormous influence on determining the division of power between states and the Commonwealth.

Role of the High Court in interpreting the Constitution Summarise the following cases:

South Australia v Commonwealth (the ‘First Uniform Tax case’) [1942]

Murphyores v The Commonwealth (‘Fraser Island case’) [1976]

R v Brislan; Ex parte Williams [1935]

R – Regina (Latin for ‘Queen’)Ex parte – ‘from one side’, the other side is unrepresented

Role of the High Court in interpreting the Constitution Appellate jurisdiction:

Section 73 – High court has the jurisdiction to ‘hear and determine all judgments’; ‘the judgment of the High Court in all such cases shall be final and conclusive’.

All appeal cases must be granted special leave before the case will be heard by the High Court.

Appeals generally relate to questions of law, or a matter of that is of such significance as to warrant the attention of the High Court, or a dispute between the opinions of the high court the requires final adjudication.

Osland v R [1998]

Aboriginal & Torres Straight Islander Peoples’ customary lawsCharacteristics, integration into Australian law

Aboriginal & Torres Straight Islander Peoples’ customary laws Customary law Based on tradition, ritual and socially

acceptable conduct There is no single system of Aboriginal

and Torres Straight Islander law. The separate indigenous nations developed their own laws, but there were common aspects. These laws are spiritual and closely linked to the land.

Aboriginal & Torres Straight Islander Peoples’ customary laws Aboriginal & Torres Straight Islander Peoples’

customary laws vs British law Land ownership The right to posses property is a key principal of

English law Aboriginal & Torres Straight Islander Peoples’ land

is sacred and cannot be owned; custodians of the land, looking after for future generations.

This is the reason why the British settled and impose British property law. They considered Australia to be unoccupied land (terra nullius)

Aboriginal & Torres Straight Islander Peoples’ customary laws Follow customary law questions.docx

using Pearson pages 57-67 diverse nature of customary laws spiritual basis, significance of land and

water family and kinship ritual and oral traditions mediation and sanctions relevance to contemporary Australian law

International law

Sources of International Law Customary International Law Treaties Declarations Legal Decisions

Customary International Law This type of law is not written in a single document, but it is

known through long established traditions and common practices.

A bad thing about this form of law is that they still need to be constantly changed to keep up with

There are many independent nations so it is hard to write a law that can bind the entire nation’s together.

Customary law has now been replaced with treaty law. Treaty law is either bilateral of multilateral. The more countries that sign a treaty the more powerful it gets!

Most laws prohibiting crimes against humanity originated from customary law. Important examples include condemnation and genocide.

Treaties A treaty is an international agreement concluded between

states in written form and governed by the guidelines of international law.

Treaties are the most commonly used source of international law.

The more nations that sign a treaty, the more powerful that treaty will be.

Treaties are used to make specific laws and to control conduct and cooperation between and within nations

A treaty may also establish an international organization. There is no set way of making a treaty, but most treaties are

made through direct negotiations between nations. If all parties involved agree, the treaty with be signed.

Treaties Treaties can be either: Bilateral – Between two nations. For example the

Agreement between Indonesia and Australia on Framework for Security Cooperation, concerning their common security and respective national security

Multilateral – Between many nations. For example the Charter of the United Nations, this established the UN and its organs and agencies. Each country that is a signatory to this treaty that has a seat in the General Assembly and participates in UN processes.

Declarations Declarations are also international

instruments, but they differ from treaties.

Declarations state and clarify the parties' position on particular issues, but do not impose legally binding provisions that must be followed.

Declarations Example of a declaration: A famous example of a declaration is the Universal Declaration of Human

Rights. The United Nation Commission on Human Rights was established,

following the Second World War. To draft the declaration - the first universal statement on the basic

principles of human rights. Among its chief purpose was to define the meaning of the words

'fundamental freedoms' and 'human rights', which appear in the UN Charter

In 1948, the declaration was ratified by a proclamation by the UN General Assembly and 48 countries voted in favor for it, with none voting against it and only eight abstaining it.

The declaration is the foundation for two binding UN human rights covenants: the International Covenant and Political Rights (ICCPR) and the International Covenant of Economics, Social and Cultural Rights (ICESCR).

Its principles are contained in other treaties as well

Legal Decisions Decisions made by the International Court of Justice

(ICJ) effect only the parties involved, outlined in s 59 in the Statute of the International Court of Justice

Other courts such as the International Criminal Court (ICC), set up to deal with the two most serious crimes concerning worldwide community, and the European Court of Human Rights (ECHR). Both these courts are either specialised or regionalised

Temporary courts such as the International Criminal Tribunal for the Former Yugoslavia or Rwanda set up for genocide and war crimes/crime against humanity

International Organisations Summarise the following (P51-55, Cambridge) The United Nations

The General Assembly The Security Council The International Court of Justice

Intergovernmental organisations Non-government organisations Complete the following worksheet:

UN bodies and treaty based agencies.doc

Relevance of international Law to Australian law Ratification of a treaty automatically

makes it part of that country’s domestic law.

Some treaties require new legislation for implementation into Australian law (s51 Constitution).

Treaties influence in development of common law, judicial review, and judicial interpretation of statutes.

Relevance of international Law to Australian law Examples of human rights treaties that

has been reflected in state or teritory and/or federal legislation:

Human Rights Treaties Reflected in Australian lawInternational Covenant on Civil and Political Rights (ICCPR)

Human Rights Act 2004 (ACT); Charter of Human Rights and Responsibilities Act 2006 (Vic)

Convention on the Rights of a Child (CROC)

Family Law Act 1975 (Cth)

Convention of the Elimination of All Forms of Discrimination Against Women (CEDAW)

Sex Discrimination Act 1984 (Cth)

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

Crimes (Torture) Act 1988 (Cth)*Cth = Commonwealth